2020 NY Slip Op 50091(U)
N.Y. App. Term 2nd
2020

People v Anderson (John)

2016-2361 K CR

Appellate Term, Second Department

January 24, 2020

2020 NY Slip Op 50091(U) | 66 Misc 3d 138(A)

MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Appellate Advocates (Kendra L. Hutchinson of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael J. Yavinsky, J.), rendered August 24, 2016. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the third degree, and imposed sentence.

ORDERED that the judgment of conviction is reversed, on the law, the guilty plea is vacated, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

After waiving prosecution by information, defendant pleaded guilty to attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) in satisfaction of an accusatory instrument which also charged him with menacing in the third degree (Penal Law § 120.15), disorderly conduct (Penal Law § 240.20 [1]), and harassment in the second degree (Penal Law § 240.26 [1]). The accusatory instrument, executed and sworn to by a police officer, alleged that he had been informed by the complainant that the complainant had observed defendant pacing back and forth inside a subway train car, in which the complainant and approximately 20 other individuals had been sitting, while defendant repeatedly listed various ways in which he could kill all of the occupants of that train car. Additionally, the accusatory instrument alleged that the complainant had informed the officer that defendant had pushed his fist against the complainant‘s nose and ordered the complainant to turn his telephone off, which action had caused the complainant to fear physical injury and to become alarmed and annoyed. On appeal, defendant contends that the count of attempted assault in the third degree, to which he pleaded guilty in satisfaction of the accusatory instrument, was facially insufficient since the accusatory instrument failed to allege that he had intended to cause physical injury to the complainant or that he had come dangerously close to doing so.

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977]; see also People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant‘s guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]; see also People v Thiam, ___ NY3d ___, 2019 NY Slip Op 07712, *1 [2019] [“Even if the accusatory instrument properly sets out a lower-grade offense, a defendant‘s challenge to a conviction based on the jurisdictional deficiency of a higher-grade crime of a multi-count complaint is not waived by the defendant‘s guilty plea“]). Here, since defendant expressly waived the right to be prosecuted by information, the relevant count of the accusatory instrument must be evaluated under the standards that govern a misdemeanor complaint (see Dumay, 23 NY3d at 524; see also CPL 100.15, 100.40 [4]; People v Dumas, 68 NY2d 729, 731 [1986]). Moreover, where a defendant has pleaded guilty to one or more of the counts actually charged in a multi-count accusatory instrument, and, on appeal, raises a jurisdictional challenge, the defendant need not challenge the facial sufficiency of all of the counts contained in the accusatory instrument at the time the defendant entered the guilty plea; rather, he or she need only challenge the facial sufficiency of the actual count to which he or she pleaded guilty (see People v Mason, 62 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Dumay, 23 NY3d 518). Thus, here, since defendant pleaded guilty to attempted assault in the third degree, this court need only examine the facial sufficiency of that count. While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charge, the offense and factual bases therefor must be sufficiently alleged (see Konieczny, 2 NY3d at 575).

Pursuant to Penal Law § 120.00 (1), a person is guilty of assault in the third degree when “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person.” Pursuant to Penal Law § 110.00, a person is guilty of an attempt to commit a crime when, “with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” Thus, to be facially sufficient, an accusatory instrument charging a defendant with attempted assault in the third degree must demonstrate, through the facts alleged and the reasonable inferences which flow therefrom, reasonable cause to believe that the defendant intended to cause physical injury to the complainant, and that he engaged in conduct which came dangerously close to causing such physical injury (see People v Louis, 15 Misc 3d 128[A], 2007 NY Slip Op 50599[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). In defining the level of physical injury that would be necessary for an assault, the legislature noted that “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives” are not within the definition of the statutes (Staff Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law art 125, at 330; see People v Chiddick, 8 NY3d 445, 448 [2007]; People v Henderson, 92 NY2d 677, 680 [1999]; Matter of Philip A., 49 NY2d 198, 200 [1980]). In assault cases, the necessary intent is sufficiently pleaded if an inference of intent to injure can rationally be drawn from the acts the defendant is alleged to have committed (see People v Jordan, 43 Misc 3d 1210[A], 2014 NY Slip Op 50568[U] [Crim Ct, NY County 2014]). That inference cannot be drawn here, as the facts pleaded in the accusatory instrument do not sufficiently allege that defendant‘s actions came “dangerously close” (People v Mahoubian, 74 NY2d 174, 191 [1989]) to the commission of a completed assault (see Louis, 15 Misc 3d 128[A], 2007 NY Slip Op 50599[U]). The accusatory instrument did not allege that, when defendant had pushed his fist against the complainant‘s nose, that action had caused the complainant pain of any degree. Moreover, the physical act alleged, a push, does not itself describe a degree of force sufficient to make out the intent to cause physical injury (see Matter of Wanji W., 277 AD2d 243 [2000]; Jordan, 43 Misc 3d 1210[A], 2014 NY Slip Op 50568[U]; People v Chavez, 41 Misc 3d 526 [Crim Ct, Bronx County 2013]). Although intent can be inferred from the act itself or upon the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1977]), here, the factual allegations fall short of raising an inference of intent to cause physical injury. Without any additional facts, such as the complainant‘s physical condition, whether he experienced substantial pain, or the amount of force used by defendant when pushing his fist against the complainant‘s nose, it cannot be inferred that defendant had acted with the requisite intent to support a charge of attempted assault in the third degree. Thus, based upon the facts alleged, defendant‘s conduct did not rise above the level of petty slaps, shoves, or kicks, and, consequently, it cannot be rationally inferred that defendant had intended to cause or attempt to cause physical injury to the complainant (see Matter of Philip A., 49 NY2d at 200; People v Cherry, 104 AD3d 468 [2013]; Matter of Wanji W., 277 AD2d at 244; People v Facey, 115 AD2d 11 [1986], affd 69 NY2d 836). Consequently, as the accusatory instrument failed to allege facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]) of attempted assault in the third degree and failed to set forth facts that established reasonable cause to believe that defendant committed this offense (see CPL 100.40 [4]), this count of the accusatory instrument was facially insufficient.

As defendant has already fully served his sentence of 90 days’ imprisonment, rather than reinstate the remaining counts of the accusatory instrument to their prepleading status (see CPL 470.55 [2]), as a matter of discretion in the interest of justice, we dismiss the accusatory instrument in its entirety since no penological purpose would be served in restoring the criminal action (see People v Barrett-Jones, 60 Misc 3d 135[A], 2018 NY Slip Op 51055[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; cf. People v Allen, 39 NY2d 916, 917-918 [1976]).

Accordingly, the judgment of conviction is reversed, the guilty plea is vacated, and the accusatory instrument is dismissed.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

Paul Kenny

Chief Clerk

Decision Date: January 24, 2020